CHI COMMODITIES HANDLERS INC. Vs. MAHAVISHNU CASHEW FACTORY

JUDGEMENT

(1.) This original petition is filed by the petitioner in E.P. No. 129 of 2013 of the District Court, Kollam. Petitioner wants enforcement of Ext. P1, award dated 07.02.2012. He moved Ext. P3, application-E.A. No. 51 of 2013 for attachment of an item of property belonging to the respondent. Learned District Judge issued notice on that application returnable by 21.05.2013. Petitioner, apprehending that respondent might in the meantime transfer the property has approached this court with this original petition under Article 227 of the Constitution praying that respondent may be directed to furnish security for the amount due as per Ext. P1, award until disposal of E.A. No. 51 of 2013 and for a direction to the learned District Judge to dispose of E.P. No. 129 of 2013 expeditiously.

(2.) Learned counsel for the respondent has opposed the original petition on various grounds. It is contended that the original petition itself is not maintainable since petitioner which is stated to be a company is not represented by a competent person as provided under Rule 1 of Order XXIX of the Code of Civil Procedure (for short "the Code"). Petitioner is represented by an Advocate who otherwise not entitled to represent the company in a legal proceeding. The vakalath and authorisation produced along with original petition are defective. Endorsement on the docket of vakalath shows that it intended to be produced in a case between petitioner and M/s. Penil Cashew Company. Learned counsel argues that even the original of letter of authorisation appended to the vakalath is not produced apart from that the country where the authorisation was executed is not mentioned. It is further argued that this original petition is filed suppressing material facts in that respondent has filed O.P. (Arb) No. 87 of 2012 in the District Court, Kollam to set aside the Ext. P1, award (Ext. R1(a) is the copy of petition) but there is no mention of that original petition in this original petition. Learned counsel also argued that Ext. P1, award was passed on 07.02.2012 while respondent filed O.P. (Arb) No. 87 of 2012 on 06.03.2012. It is submitted that petitioner, notwithstanding that it has got information about that original petition has deliberately refused to appear in the said proceeding. Ext. P2, execution petition is preferred only on 25.03.2013. A further argument is that even in the application for attachment preferred in the court below, there is no mention as to where from petitioner got information that respondent is about to dispose of its properties. Learned counsel points out that though Ext. P1, award was passed on 07.02.2012 respondent did not transfer the property even on filing of execution petition on 25.03.2013.

(3.) Yet another argument advanced is that under Sec. 48(3) of the Arbitration and Conciliation Act, 1996 (for short "the Act") it is within the power of the court when the award is under challenge to adjourn proceeding for enforcement of the award. According to the learned counsel the award also is not enforceable as it is opposed by the public policy of this country.